By TOLGA KUNTER
The article titled “Turkey’s Politicised Judiciary” gives nearly all the details about how Turkish judiciary has been made first de facto and later de jure dependent to the government. The recent dispositions of the newly constituted HSK (Turkish Council of Judges and Prosecutors) indicate that independence and impartiality for the Turkish judiciary will remain a dream for a long time to come.
Following the referendum held on 16 April 2016, the new HSK presided by the Minister of Justice took office on 7 June 2016 with all its thirteen members; seven of which are appointed by the Turkish Parliament, four of which are directly appointed by President Recep Tayyip Erdoğan and the undersecretary of the Ministry of Justice as the natural member.
The governing party AKP has got the highest number of seats in the parliament. Hence, nearly all of the HSK members selected by the parliament are supported by the AKP. It is also claimed that MHP (Patriotic Movement Party), as a favour for their support to the AKP, has been given the right to assign two members. So, out of seven HSK members selected by the parliament, five have AKP connection and two MHP connection. Curricula vitae of the new members confirm these claims too.
As a consequence of the referendum, President Erdoğan assigned 4 members of the HSK on May 19, and he himself was also selected as the leader of the AKP on May 21. Thus, nearly all of the members of the HSK, an institution supposed to operate as the guarantor of an independent and impartial judiciary, have been selected by the AKP.
Having been constituted under the foregoing conditions, HSK issued its first decree on July 4 and clearly demonstrated how partisan it is going to be as soon as taking office.
Despite the fact that 2,492 judges and prosecutors from the criminal and administrative sections of the judiciary, 104 members of the Court of Cassation, 41 members of the Council of State, two members of the Constitutional Court and three members of HSYK (High Council of Judges and Prosecutors) have been detained, about 5,000 judiciary members have been dismissed from their profession during the prosecutions initiated after the July 15 “controlled coup” – as described as such by the leader of the main opposition party CHP– and eventually a very “undiversified” judiciary has been established; the newly elected HSK members have also continued purging the members of the judiciary. Not only that they continued purging but also continued promoting the members of the judiciary whom they regarded to have served to the favour of the governing party.
Having zero tolerance to the opposing voices from within the judiciary, the ruling power has also closed down YAR-SAV, the largest civil society orgnisaiton within the Turkish judiciary, by means of an emergency law decree and detained its president Murat Arslan and nearly half (774) of its members.
After YAR-SAV which had 1,604 members was shut down, 80-member Yargıçlar Sendikası (Judges Union) was the only remaining civil society organisation active in the judiciary. However, the newly formed HSK first reassigned Yargıçlar Sendikası Head Mustafa Karadağ to Şanlıurfa. The council then exiled 17 members of the union with the decree issued on July 4 to various parts of Turkey, most of whom are senior judges and prosecutors.
“I was saying, ‘I hope it’s not our turn now,’ but obviously it is,” reacted Istanbul Judge and a member of the union, Nuh Hüseyin Köse, who has been sent to Kayseri. “Merits and qualifications do not count anymore. Now the process of appointing party member-junior solicitors as judges has started. Judges, who have long length of tenure, are being discarded and cast aside. They are forced either to retire, or resign from their profession. If neither, they are inactivated.”
Cumhuriyet newspaper gave the news with this heading: “Carnage Decree Issued by the Partisan HSK”. The news resembled the conduct of HSK to a carnage and reported that the opponent judges and prosecutors have been dismissed, while the proponents of the government have been promoted; and in total 72 chief prosecutors and 71 deputy chief prosecutors have been displaced from their earned positions. The news also stated that a deputy chief prosecutor, who has been demoted to a prosecution office of the Court of Cassation, said, “These are our medals. This is a decree issued against those not obedient to them.”
With the HSK decree, Deputy Chief Prosecutor General Ismail Uçar has been promoted and appointed as the Chief Public Prosecutor of Istanbul Anatolian Court House. He is a crucial person for the government. He is one of the three prosecutors who issued verdicts of non-prosecution for the December 25 corruption and bribery investigation, which also involved the-then-PM Erdoğan’s son Bilal Erdoğan and son-in-law Berat Albayrak. Uçar also prepared the indictment for the policemen who conducted the corruption and bribery operation, by accusing them of “attempting a ‘coup’ and establish a criminal organisation”. Prosecutor Fuzuli Aydoğdu, another prosecutor who closed this corruption file, was appointed to a very critical post by the new HSK as its Secretary General on 17 June 2017.
The third prosecutor who closed the December 25 probe was Irfan Fidan. Irfan Fidan had been appointed as the Istanbul Chief Public Prosecutor on 26 July 2016 by the former HSYK, which had been acting under the de facto control of the government.
With the appointment of Ismail Uçar as the Chief Public Prosecutor of Istanbul Anatolian Court House, all the criminal investigations and prosecutions held in Istanbul, the largest city in Turkey with a population of 15 million, have been handed over to the prosecutors who had covered up the December 25 corruption and bribery investigation by issuing non-prosecution verdicts.
Another action of the new HSK that manifested how correctly it is called as “partisan HSK” by the remaining few opposition newspapers was the election it held on 5 July 2017 to assign new members to the Court of Cassation. İslam Çiçek is one of the persons appointed by the HSK as a member to the Court of Cassation. His name was heard for the first time by the public during the December 17-25 corruption and bribery investigation. As part of the investigation, which the ruling power harshly opposed and described it as “a coup against the government”, Barış Güler -son of Interior Minister-, Kaan Çağlayan -son of Economy Minister-, and Reza Zarrab –Iranian businessman who is currently held in detention in the US- had been detained. Judge Islam Çiçek, notwithstanding the clear evidence reported in the case file -many of which have been also reported in the media-, issued release verdicts for the suspects. Some opposition MPs in the Turkish Parliament showed the partiality of Judge Çiçek by presenting the documents depicting that he had shared social media messages revealing his personal adoration for Erdoğan.
As mentioned above, the judges and prosecutors who closed the December 17-25 corruption and bribery investigation extending to some members of the government have been awarded by the government in one way or another and promoted to senior positions. On the other hand, the prosecutors and judges who performed their duties by launching the corruption and bribery interrogation and disclosing the misconducts of the government members and their relatives have been accused of “attempting a coup against the government”, labelled as “terrorists”, dismissed from their professions, and even taken into custody.
Another name who has been assigned by the HSK as a member to the Court of Cassation is Harun Kodalak, the prosecutor who closed the case file in Turkey against Deniz Feneri e. V., the Germany-based Turkish charity. The Deniz Feneri e. V. case is an international corruption case initiated in Germany and extended to Erdoğan and some AKP members in Turkey. The German court which heard the case convicted three officials of the charity for fraud and embezzlement of the donated funds. When the investigation initiated by the Ankara Public Prosecution Office as an extension of this case started to give signals that some AKP members were also involved in the crime, the opposition party CHP and the public started to show a great interest in the case. In response, the ruling party jumped in and assigned Harun Kodalak to conduct the investigation and removed the prosecutors who had launched the investigation from their posts. Kodalak issued a decree of non-prosecution for fraud and organised crime part of the investigation, which were as a matter of fact more serious issues in the case and prevented the probe from extending to the ruling party and saving them from prosecution.
Basri Bağcı has also been elected by the HSK as a member to the Court of Cassation. He was the undersecretary of the Ministry of Justice who visited many court houses representing the government and wanted the members of the judiciary to vote at the 2014 HSYK election for the candidates of Yargıda Birlik Platformu (YBP – Platform for Unity in Judiciary), which is formed by the government in order to control and capture the judiciary.
All of these have been noted in order to bear witness for history. Otherwise, independent observers who more or less follow the developments in Turkey from both inside and outside the country clearly know that after the corruption and bribery investigations held on 17-25 December 2013; the judiciary in Turkey have been subjected to a heavy pressure by the government; the Council of Judges and Prosecutors (HSK) has been taken under a de facto control of the government when the candidates of government-established YBP won the HSYK elections held on 12 October 2014; the legal infrastructure of this de facto situation was completed with the referendum held on 16 April 2016; and thus with the formation of HSK following 16 April, the ruling power has captured the whole control of the Turkish judiciary both de facto and de jure.
Today, it is not possible to talk about an independent and impartial judiciary in Turkey. HSK is conducting all its judicial dispositions in an openly “partisan” manner. The assignments made by the latest HSK decrees present only a few simple examples of this partisanship.
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